• Lex Valorem


Madhavaram Sreshta Rao
Encounter with the Law

Having seen the latest news about the encounter of Vikas Dubey in Kanpur by the police on the morning of July 10th, 2020 and prior to that having heard of the encounter of the 4 accused in the rape case of Dr. Priyanka Reddy on 6th December 2019 in Hyderabad, we are well aware of what and how these encounters take place. Such encounters bring exhilaration and joy to a few, they opine that hardcore criminals shall be punished in a similar manner or worse, that they shall be “exterminated through lynching in public.” Whereas, a few others view it as a cold-blooded murder by the police. In the case of “Prakash Kadam v. Ramprasad Vishwanath Gupta”, the Supreme court had observed that "fake encounters by the police are nothing but cold-blooded murders and those who are committing these must be given a death sentence by placing them in the category of the rarest of the rare”

Rather than directly sliding off into the legal aspect of this issue and the opinion which sounds more relevant to me, we shall also understand what an encounter killing is. “Encounter killings” in other words is “extrajudicial killings” by the armed forces or the police in self-defense. However, in reality, many suspect the staging of these encounters by the police. By staging, we mean that we suspect fake encounters; where actually the circumstance does not require the killing of the arrested person because there might not have been any sudden provocation or grave danger from such a person which is claimed to have been the cause that has given rise to the right of self-defense in which the police officer had to succumb to an encounter, but that it was just an act of misuse of power and a way of adopting the measures of retributive justice so as to bring speedy justice.

Now, deciding as to whether an act of encounter was a fake and a staged one is again left for the court of law but what we can do is try to interpret the situation by backing it up with the provisions our constitution has provided us with. However, when such encounters take place, people try to reason it out and try to deliver the justice of their own will but is that how a democracy is to function?

With the recent two encounters that have gotten nationwide attention, the question as to the validity and legality of the action so taken by the police has been raised and has become one of the leading debates. Questions are being raised as to whether justice shall be taken into one’s hands and power be misused or whether the norms and guidelines set by the constitution be followed as is done in a democratic country.

As per the constitution of India, there is a set procedure which is prescribed for a criminal investigation under Article 21 of the Indian Constitution which mentions the Right to Life and Personal Liberty and no person can be deprived of this except as per the procedure that has been established by law. It implies that a person cannot be deprived of his life before he/she is put on trial in accordance with the Code of Criminal Procedure, 1973 and the person shall be informed of the charges against him/her and shall be given the opportunity to defend himself/ herself. It is only after the compliance of this procedure that a person can be held guilty or not under the eyes of law. It is hence the duty of the police officers to ensure that such a principle be upheld. Another major principle that has to be taken into consideration is the rule of law as stated under Article 14 of the Indian Constitution. It mentions that the constitution is the supreme power of the land and every person is equal before the law.

However, these fake encounters only neglect and avoid these legal procedures because they take away the right of a person to be put on trial and to defend oneself as under Article 21 of the Indian Constitution and doing this takes away the right of a person to be treated equally under the eyes of law as under Article 14 of the Indian Constitution. This Act of a fake encounter hence stands unconstitutional and criminal.

Looking at the encounter of Vikas Dubey, it all started with him killing eight policemen when they raided his village. This particular event created chaos and shook the nation. The people demanded the culprit be punished and that the sacrifice made by the martyrs not be gone in vain. The search for Vikas Dubey had then begun and the police failed to find him for six days. In the process of finding him, the police killed many of his aides. After 6 days the gangster was arrested in Ujjain, Madhya Pradesh. He was later handed over to the UP police and on the morning of 10th July, 2020 the police were bringing him from Ujjain to Kanpur. It is also said that the media was following the vehicle in which Vikas Dubey was being transferred, but the police had stopped them and asked them to leave. It was after this that the police claimed that the vehicle carrying Vikas Dubey met with an accident and the vehicle had overturned after which he tried to escape and, in this process, he had taken the revolver of one of the police officers. It was in the counter-fire by the police that he was encountered.

The above are the facts that all of us are aware of and it is pertinent to mention the sections of 96 to 106 of the Indian Penal Code,1860 which deals with the right to private defense. In this, it is said that the use of minimal force is only permitted in order to protect oneself or one’s property. The Police are hence not allowed to misuse the law or override it.

The fact that Vikas Dubey surrendered portrays that he did not want to escape. The fact that the media vehicles were stopped prior to the accident also raises certain suspicions along with the fact that the accused had a certain nexus with a few political figures and the reason for the encounter being that such a nexus not be exposed.

Whatever the reason, one thing that can surely be established is the fact that the rule of law has not been followed and the constitution was buried by the act of the police. These fake encounters hence override and violate Article 14 and Article 21 of the Indian Constitution. This culture of encounters not only violates the rule of law but also encourages such acts in the future. By doing so, we are overriding the essence of law and justice. Some of us celebrate this culture because we feel that justice is being delivered in an easier and in a quick manner. A similar wave of justice was created in the nation after the rape of Dr. Priyanka Reddy, wherein people were demanding that the accused be killed.

Why do we support it? It is due to the idea of delayed justice in our country. Taking into example the Nirbhaya case, it took 7 years before the final decision was delivered but justice did finally take its course. However, people don’t tend to have so much of patience. They say justice delayed is justice denied. They expect immediate results, but is that how we shall function? Yes, probably the delivery of justice shall be faster but in the process of doing so, law shall not be sidelined and the judiciary shall not be disregarded.

Living in a democracy, for law and order to prevail and peace to exist, it is necessary that we respect and abide by the law of our land; the constitution. We being the citizens shall not support any act that defeats the basic or the fundamental principles and rights available to us. The right to equality exists even to the accused, and they have a right to be heard. That right cannot be taken away by anyone and we shall respect such a law.

No matter what the situation, we shall let the law take its course, we shall let the judiciary make its decision and our final destination will surely be for justice to be delivered. We shall hence not encourage such encounters that defeat this very purpose. This article is my encounter with law, and I write this hoping that together we stop the law from being encountered.

-Madhavaram Sreshta Rao,

Symbiosis Law School, Hyderabad

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